Himachal Pradesh High Court
Subhadra Kumari vs State Of Himachal Pradesh on 30 March, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.R. No. 111 of 2008.
Reserved on 22.3.2017.
.
Decided on: 30.3.2017.
Subhadra Kumari ....Petitioner/accused.
Versus State of Himachal Pradesh ... Respondent. ___________________________________________________________ of Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes.
rt ___________________________________________________________ For the petitioner. : Mr. Divya Raj Singh Thakur, Advocate.
For the respondent. : Ms. Parul Negi, Dy. Advocate General.
Ajay Mohan Goel, Judge.
By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Additional Sessions Judge, Fast Track Court, Shimla in Appeal No. 7-S/10 of 2008 dated 26.6.2008, whereby learned appellate court while maintaining the conviction of petitioner/accused under Section 228 of IPC, has modified the sentence imposed upon her by the learned trial court and has ordered the accused to 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 2undergo simple imprisonment till rising of the Court and to pay fine of Rs. 300/- and to further undergo simple imprisonment for .
a period of 07 days for want of payment of fine.
Petitioner/accused has also laid challenge to the judgment passed by learned trial court i.e. the Court of learned Judicial Magistrate 1st Class (4), Shimla dated 20.3.2008 vide which learned trial court of convicted the accused for commission of offence punishable under Section 228 of IPC and sentenced her to undergo simple rt imprisonment for a period of one month and to pay fine of Rs.
300/- and to further undergo simple imprisonment for a period of 07 days in case of default of payment of fine.
2. Brief facts necessary for adjudication of the present case are that a complaint was filed against the present petitioner by Addl. Chief Judicial Magistrate, Court No.1, Shimla to the effect that on 24.8.2005 at around 12:00 noon when complainant was performing his duties as Addl. CJM, Shimla and was dealing with criminal cases, one case titled State Vs. Suresh Kumar bearing No. 281/2 of 2004 was listed for recording the evidence of witnesses.
In the said case when statement of Subhadra Kumari (hereinafter referred to as 'the accused') was being recorded as prosecution ::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 3 witness, she started quarreling with Sh. M.L. Brakta, Advocate who was the defence counsel for accused Suresh Kumar. As per the .
complainant, accused interfered in the proceedings time and again. On the asking of complainant to remain calm, accused started shouting and stating that she had no faith in the system and particularly in the court of the complainant. Accused shouted of that her case be closed and thrown in the dustbin. Accused was advised by the complainant as well as by learned Assistant Public rt Prosecutor who was conducting the case on behalf of the prosecution as well as other lawyers present in the Court to maintain the decorum in the Court, however, she continued her belligerent behavior. Accused was also informed that the said behavior of her would amount to contempt of Court but accused stated that she did not care for anyone. In these circumstances a lady constable was called by the complainant. Thereafter cognizance was taken of the said contemptuous behavior of accused by the complainant for offence punishable under Section 228 of IPC as per the provisions of Section 345 Cr.P.C and preferred a complaint under Section 346 of Cr. P.C. As accused did not furnish any security before the complainant, accused was ::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 4 forwarded in the custody of lady constable Versha along with the complaint to the court of learned Chief Judicial Magistrate, who .
assigned the case to the court of learned Judicial Magistrate 1st Class (4), Shimla.
3. On consideration of the complaint, notice of accusation was put to the accused for having committed offence of punishable under Section 228 of IPC to which she pleaded not guilty and claimed trial.
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4. On the basis of evidence produced on record both ocular as well as documentary by the prosecution, learned trial court held that it stood proved on record that accused had interfered in the court proceedings and had cast aspersion by shouting that she had no faith in the system and that her file be thrown into the dustbin. Leaned trial court also negated the plea of the accused that the procedure prescribed under Section 346 of Cr.P.C. was not followed in the matter. Learned trial court also held that there was no merit in the contention of the accused that the non examination of lady constable Versha demolished the case of the prosecution or that no notice of accusation was put to her as there was no mention in the zimni order. Learned ::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 5 trial court held that a detailed notice of accusation was placed on the file on which signatures of the accused were there which .
demonstrated that proper notice of accusation was put to her for having committed offence punishable under Section 228 of the IPC. On these basis it was held by learned trial court that evidence on record proved beyond all reasonable doubt that of accused had interfered in the court proceedings being conducted by Sh. Varinder Kumar Sharma, the then Addl. CJM, Shimla in case rt titled as State Vs. Suresh Kumar and she also shouted in the Court that she had no faith in the system of the Court and her case file be thrown into the dustbin. Learned trial court convicted the accused for commission of offence punishable under Section 228 of IPC and sentenced her to undergo simple imprisonment for a period of one month and to pay fine of Rs. 300/- by taking a lenient view in the matter on the count that accused was sole bread earner in the family and had no previous history of involvement of any offence.
5. In appeal, learned appellate court while upholding the judgment of conviction passed against the accused by learned trial court reduced the sentence imposed upon her from one ::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 6 month simple imprisonment to imprisonment till rising of the court and fine of Rs. 300/- by holding that sending the convict to .
jail will serve no fruitful purpose and rather she would be exposed to the unhealthy atmosphere of the jail and her career would be ruined and upbringing of her minor daughter would also be adversely affected. A perusal of the judgment passed by of learned appellate court demonstrates that when the appeal was heard by learned appellate court, learned counsel appearing for rt the appellant therein, i.e., the present petitioner had prayed that the appeal be treated as mercy petition and it was on this background the learned appellate court without dwelling on the merits of the case, while upholding the conviction of accused modified the sentence imposed upon her by the learned trial court.
6. Feeling dis-satisfied, the accused has filed the present petition.
7. I have heard learned counsel for the parties and have also gone through the records of the case as well as the judgments by both the learned courts below.
::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 78. Records demonstrate that the judgment of conviction passed against the petitioner by the learned trial court was not .
agitated on merit by her before the learned appellate court.
During the course of arguments before the learned appellate court, a prayer was made on behalf of the accused that her appeal be treated as a mercy petition. In view of the prayer so of made on her behalf, learned appellate court reduced the sentence imposed upon the petitioner/accused. A perusal of the grounds of rt revision petition demonstrates that there is no averments made therein to the effect that no such concession was made on behalf of the petitioner/accused before the learned appellate court that her appeal be treated as a mercy petition, therefore, in these circumstances when the petitioner did not contest the judgment passed by the learned trial court on merit before the learned appellate court and had prayed for mercy and learned appellate court had sympathetically thereafter reduced the punishment so imposed upon her by the learned trial court it is not now open to the petitioner to agitate the judgment of conviction so passed against her by the learned trial court and affirmed by the learned appellate.
::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 89. However, in the interest of justice, so that the petitioner does not carries the impression that this court has not .
gone into the legality of the judgment passed by the learned trial court as complainant happens to be a Judicial Officer, I have gone through the records in order to satisfy the judicial conscious of this court as to whether the findings returned by the learned trial of court are borne out from the records of the case or not.
10. Records demonstrate that the notice of accusation rt was in fact duly put to the accused on 26.9.2005 and the same bears the signature of the accused.
11. In order to prove its case prosecution examined six witnesses whereas defence also examined three witnesses.
12. Mr. Sandeep Atri who was then serving as Assistant Public Prosecutor in the court of the then Addl. Chief Judicial Magistrate entered the witness box as PW1 and deposed in the Court about the factum of initially the accused started a quarrel with Sh. M.L. Brakta learned counsel who was appearing as a defence counsel in the case titled State Vs. Suresh Kumar in which case accused was present and was deposing as a complainant.
This witness further deposed that the accused was called upon by ::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 9 the Presiding Officer to remain calm, however, accused started shouting and abusing. He further stated that complainant stated .
in the court that she had no faith in the court or the system and that her case be closed and dumped into a dustbin. He further deposed that she kept on shouting loudly in the court corridor and was requested by other counsels also but she did not heed of to anyone and thereafter a lady constable was called.
13. Madhu Sharma who was serving as a Reader at the rt relevant time in the Court of learned Addl. Chief Judicial Magistrate entered the witness box as PW2 and deposed about the disruption which was created by the accused during court proceedings.
14. Sh. M.L. Brakta, Advocate entered the witness box as PW3 to support the case of the prosecution and he also deposed about the disruption behaviour of the accused.
15. Sh. Y.P.Sood, Advocate who was present in the court room appeared as PW4 and Presiding Officer entered the witness box as PW5. Besides them Sh. Vijay Pandit, Advocate who was also present in the court deposed as PW6.
::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 1016. A perusal of the statements of these witnesses demonstrates that they have in unison deposed in the court .
about the factum of the accused disrupting the court proceedings by initially entering into a quarrel with Sh. M.L. Brakta learned defence counsel in the case concerned and thereafter by shouting and by using derogatory language. All these witnesses were of subjected to cross-examination, however, their credibility could not be impeached by the defence.
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17. Out of three witnesses examined by the defence, DW2 Mohinder Razta has stated that he was not present in the court when the alleged incident took place. DW3 Shish Pal has stated that he was not aware as to what happened on the fateful day as he came to know about the incident when he reached his house as he had left the court after receiving a phone call. DW1 Sanjeev has deposed that he was present in the court on 24.8.2005 and accused had not created any noise in front of him and that the Presiding Officer had threatened the accused and had called her characterless which lead to the quarrel. However, a perusal of his cross examination demonstrates that he has stated therein that he was not aware as to whether when the ::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 11 accused was standing in the court she was accompanied by any lawyer or not and he was not aware as to what was happening in .
the court. Though he denied the suggestion that he was not in the court at the relevant date but he self stated that he was standing outside the court. Firstly except his bald statement that he was present in the court premises, there is no other evidence of from which it can be inferred that he was present in the court on the fateful day.
rt Besides this his testimony to the effect that learned Presiding Officer threatened the accused and called her characterless does not inspire any confidence as one hand he has deposed that he was standing outside the court and was not aware as to what were the proceedings etc. going on in the court but still he deposed that the Presiding Officer threatened the accused and called her characterless. This otherwise also was not the defence of the accused. This version of DW1 has not been corroborated by any other evidence on record, therefore, in my considered view, it cannot be said from the material placed on record by the prosecution that the finding of guilt returned by learned trial court against the accused is not borne from the records of the case.
::: Downloaded on - 15/04/2017 22:05:36 :::HCHP 1218. At the cost of repetition this court reiterates that though it is aware of its limitations while exercising its revisional .
jurisdiction, however, this court has re-appreciated the evidence keeping in view the fact that as the conviction of the accused is on the basis of complaint filed by a Presiding Officer of a Court, therefore, the judicial conscious of the court had to be satisfied of that the findings so arrived at by the learned trial court were borne out from the records of the case or not.
rtIn view of my findings returned above, I do not find any perversity either with the judgment passed by learned appellate court or with the judgment passed by learned trial court and accordingly as there is no merit in this revision petition, the same is therefore dismissed. Pending miscellaneous application(s), if any also stands disposed of.
(Ajay Mohan Goel) Judge 30th March, 2017.
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